Precedent

AuthorKenneth L. Karst
Pages1986-1988

Page 1986

In MARBURY V. MADISON (1803) Chief Justice JOHN MARSHALL rested the legitimacy of JUDICIAL REVIEW of the constitutionality of legislation on the necessity for courts to "state what the law is" in particular cases. The implicit assumption is that the Constitution is law, and that the content of constitutional law is determinate?that it can be known and applied by judges. From the time of the nation's founding, lawyers and judges trained in the processes of the COMMON LAW have assumed that the law of the Constitution is to be found not only in the text of the document and the expectations of the Framers but also in judicial precedent: the opinions of judges on "what the law is," written in the course of deciding earlier cases. (See STARE DECISIS.)

Inevitably, issues that burned brightly for the Framers of the Constitution and of its various amendments have receded from politics into history. The broad language of much of the Constitution's text leaves open a wide range of choices concerning interpretation. As the body of judicial precedent has grown, it has taken on a life of its own; the very term "constitutional law," for most lawyers today, primarily calls to mind the interpretations of the Constitution contained in the Supreme Court's opinions. For a lawyer writing a brief, or a judge writing an opinion, the natural style of argumentation is the common law style, with appeals to one or another "authority" among the competing analogies offered by a large and still growing body of precedent.

The same considerations that support reliance on precedent in common law decisions apply in constitutional adjudications: the need for stability in the law and for evenhanded treatment of litigants. Yet adherence to precedent

Page 1987

has also been called the control of the living by the dead. Earlier interpretations of the Constitution, when they seem to have little relevance to the conditions of society and government here and now, do give way. As Chief Justice EARL WARREN wrote in BROWN V. BOARD OF EDUCATION (1954), "In approaching [the problem of school SEGREGATION, we cannot turn the clock back to 1868 when the [ FOURTEENTH ] AMENDMENT was adopted, or even to 1896 when PLESSY [ V. FERGUSON ] was written. We must consider public education in the light of its full development and its present place in American life.?" Justice OLIVER WENDELL HOLMES put the matter more pungently: "It is revolting to have no better reason...

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